Filter content or face blackout, Delhi HC warns Facebook, Google

The Delhi High Court on Thursday warned social networking site Facebook India and search engine Google India that websites can be "blocked" like in China if they fail to devise a mechanism to check and remove objectionable material from their web pages.

"Like China, we will block all such websites," Justice Suresh Kait said while asking counsel for Facebook and Google India to develop a mechanism to keep a check and remove "offensive and objectionable" material from their web pages.

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Justice Kait, who did not stay the proceedings against the two websites before magistrate's court, however agreed with the plea of lawyers that they would not press for an effective hearing in the trial court tomorrow.

Former Additional Solicitor General Mukul Rohatgi, appearing for Google India, said the postings of "obscene, objectionable and defamatory" articles and other things cannot be "filtered" or "monitored".

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"No human interference is possible, and moreover, it can't be feasible to check such incidents. Billions of people across the globe, post their articles on the website. Yes, they may be defamatory, obscene but cannot be checked," he said.

Rohatgi tried to distinguish between Google India and its US-based holding company Google Inc.

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"The US-based Google Inc is the service provider and not me (Google India) and hence, we are not liable for the action of my holding company. Moreover, it is criminal case where a vicarious liability cannot rpt cannot be fastened on a company which has no role, whatsoever, in the alleged offence."

Google India, which is not a service provider, is a subsidiary of Google Inc and is a separate entity distinct from its holding US-based firm, said Rohatgi. "Google India is a subsidiary of Google Inc and has a separate legal identity. Moreover, it is not bound by the acts or offences committed by its holding company," he said.

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Even Google Inc cannot be held accountable for the acts of third parties who simply used the websites for posting or publishing "obscene or objectionable" materials, he said.

"We cannot control billion minds. Some are conservative, some are liberal and some write all the defamatory and obnoxious articles on web pages. There is a procedure for getting them removed," he said.

So far, it was nobody's case that either the complainant or the government approached the service provider seeking removal of the alleged defamatory material from websites.

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Another advocate N K Kaul, appearing for Google India, said "nobody has done the homework. With great respect, neither the complainant nor the trial judge did the homework before setting the criminal law into motion."

Search engines like Google India did not host material and it simply takes a netizen to his destination, he said. He assured the court that if the complainant provides defamatory articles to Google India, then it can use "its good office" in getting them removed by its holding US-based firm.

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Additional Solicitor General (ASG) A S Chandhiok, appearing for the Centre, objected to the plea of Google India saying the US-based Google Inc has "sufficient mechanism" to know that what is offending material.

Citing provisions of the Information Technology Act, the counsel for Google India said the websites are protected by the law in respect of such "objectionable" material so far as they are not the authors.

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The websites may lose the legal protection if they either modify or monitor the article or comments or fail to deal with the complaints of an affected person or the government on such issues.

Advocate Siddharth Luthra, appearing for Facebook India, questioned the authenticity of the documents provided by the complainant to the magisterial court. "We do not know as to when, how and from where, the documents came into being. They are not the documents as per the provisions of the Evidence Act," he said.

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He also said the social networking site cannot be held accountable for the acts of the third parties.

The court fixed the case for hearing on January 16. Earlier, the trial court had summoned the representatives of 21 social networking sites, including those of Facebook, Microsoft, Google, Yahoo and Youtube after taking cognisance of a private criminal complaint against the websites.

It had also directed the Centre to take "immediate appropriate steps" and also file a report on January 13.

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Taking note of Vinay Rai's complaint, the court had held that the accused websites connived with each other and various unknown persons and are selling, publicly exhibiting and have put into circulation "obscene, lascivious content."

The websites have been booked under section 292 (sale of obscene books etc), 293 (sale of obscene objects to young person etc) and 120-B (criminal conspiracy) of the IPC.